Appendix L-1 EEO-MD-110

MODEL FOR ANALYSIS
DISPARATE TREATMENT

PRIMA FACIE CASE

2) Complainant treated differently from similarly situated employees not in protected
group

a) Were compared employees in same chain of command as complainant?

b) Were compared employees in same work unit as complainant?

OR

In the absence of comparative evidence, is there other evidence that indicates that the
agency's actions may have been motivated by discrimination?(1)

OR

Is there direct evidence that shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for its treatment of complainant and the compared
employees/applicants? How did the agency respond to other evidence, if any, of discrimination?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for its treatment of
complainant is pretextual?

Appendix L-2 EEO-MD-110

MODEL FOR ANALYSIS
HIRING/PROMOTION

PRIMA FACIE CASE

1) Complainant is a member of a protected group

2) Was there a vacancy?

3) Did complainant apply?

4) Was complainant qualified; was complainant rejected?

5) Was the vacancy filled? If so, was the selectee a member of complainant's protected
group?

OR

Is there direct evidence that shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for rejecting complainant?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for rejecting complainant
is pretextual?

Appendix L-3 EEO-MD-110

MODEL FOR ANALYSIS
DISCHARGE/DISCIPLINARY ACTION

PRIMA FACIE CASE

1) Complainant is a member of a protected group

2) Was complainant qualified for the position s/he was performing?

3) Was the complainant satisfying the normal requirements of the position?

4) Was the complainant discharged or otherwise disciplined?

5) Was the complainant replaced by an employee outside the protected group or was
s/he singled out for discharge or discipline while similarly situated employees were
retained or not comparably disciplined?

OR

Is there direct evidence that shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for disciplining complainant?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for discipline or
discharge of complainant is pretextual? E.g., Did the agency treat other individuals
with similar performance problems more favorably than complainant?

Appendix L-4 EEO-MD-110

MODEL FOR ANALYSIS
RETALIATION

PRIMA FACIE CASE

1) Had the complainant previously engaged in protected activity or opposed unlawful
discrimination?

2) Was the agency aware of complainant's activity?

3) Was complainant contemporaneously or subsequently adversely affected by some
action of the agency?

4) Does some connection exist between complainant's activity and the adverse employment decision (e.g., the adverse employment decision occurred within such a period
of time that a retaliatory inference arises)?

OR

Is there direct evidence that shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for the adverse employment decision?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for the employment
decision is pretextual?

Appendix L-5 EEO-MD-110

MODEL FOR ANALYSIS
DISABILITY--REASONABLE ACCOMMODATION

2) Does this impairment substantially limit complainant's ability to perform a major
life activity (e.g., caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working)? Provide evidence on the
activities affected, how they are affected, and the degree to which they are affected
(cannot do the activity at all, can only do the activity with assistive devices or
equipment, can only do the activity for a limited period of time, etc.).

3) Does the agency know of the complainant's disability?

4) Is the complainant otherwise qualified (i.e., does the complainant meet the education,
skills, and experience requirements of the job)?

5) What are the essential functions of the complainant's job?

6) Did complainant request accommodation? What accommodation, if any, did the
complainant suggest?

7) What action did the agency take to identify possible accommodation or attempt
accommodation? Did the agency make an individualized assessment of the complainant, comparing his/her qualifications and limitations with the job requirements?
What actions did the agency take to consider the complainant's suggested accommodations?

8) If an accommodation has been identified, will this accommodation enable
complainant to perform the essential functions of the job, i.e., is it effective?

9) Did the agency provide an accommodation?

10) If the agency did not provide an accommodation, what reason has the agency given
for its refusal?

11) If the agency contends that a particular accommodation would impose an undue
hardship on its operations, are these reasons sufficient to establish an undue
hardship defense given:

a) the overall size of the agency's program (the number of employees,
number and type of facilities and size of budget);

b) type of agency operation (composition and structure of work force);

c) nature and net cost of accommodation.

Appendix L-6 EEO-MD-110

MODEL FOR ANALYSIS
DISABILITY--DISPARATE TREATMENT

PRIMA FACIE CASE -- Where Complainant Alleges Disparate Treatment

1) Does complainant have a physical or mental impairment?

2) Does this impairment substantially limit complainant's ability to perform a major
life activity (e.g., caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working)? Provide evidence on the
activities affected, how they are affected, and the degree to which they are affected
(can't do the activity at all, can only do the activity with assistive devices or
equipment, can only do the activity for a limited period of time, etc.).

3) Does complainant have a record or history of a substantially limiting impairment
(from which complainant may have recovered in whole or in part)?

OR

Was complainant regarded as having such an impairment (whether or not the complainant has an impairment or a substantially limiting impairment)?

4) Does the agency know of complainant's disability?

5) Is complainant qualified to perform the essential functions of the job with or without
reasonable accommodation:

a. Is complainant otherwise qualified (i.e., does the complainant meet the educational and experience requirements of the job)?

b. What are the essential functions of complainant's job?

c. Can complainant perform the essential functions of the job with or without
accommodation? If an accommodation is necessary, see Model for Analysis --
Disability -- Reasonable Accommodation, Attachment A-5.

6) Was complainant treated differently from similarly situated employees who were not
disabled or who had different disabilities?

a. Were compared employees in the same chain of command?

b. Were compared employees in the same work unit?

OR

Is there direct evidence which shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for treating complainant differently than other
similarly-situated employees who were not disabled or who had different disabilities?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for its treatment of
complainant is pretextual?

Appendix L-7 EEO-MD-110

MODEL FOR ANALYSIS
RELIGIOUS ACCOMMODATION

PRIMA FACIE CASE

1) Does complainant hold a religious belief which conflicts with employment requirements? (Note: only in the rarest of cases, where the evidence appears very clear that
the complainant does not sincerely hold the religious belief or does not sincerely
engage in the religious practices that may need an accommodation should an
investigator challenge the sincerity of the belief or practice.)

2) Has complainant informed his/her superior of a conflict?

3) Has complainant been penalized for failing to comply with employment
requirements?

REBUTTAL

1) Belief or practice not of religious nature.

2) Agency could not accommodate without undue hardship.

DUTY TO ACCOMMODATE -- RELIGIOUS COMPENSATORY TIME

To allow employees to work additional hours (overtime, compensatory time) to make up for
the time required by their personal religious belief (Pub. L. No. 95-390, 5 U.S.C. 5550a,
"Compensatory Time Off for Religious Observances").

1. In this model and in the models set forth below, keep in mind the Supreme Court's decision in
O'Connor v. Consolidated Coin Caterer's Corp., 517 U.S. 308 (1996), in which the Court ruled that
comparative evidence is not an essential element of a prima facie case of discrimination. In the absence
of such evidence, the complainant must come forward with other evidence sufficient to create an inference
of discrimination.